Austin Criminal Law Journal : Austin Criminal Defense Lawyer & Attorney : Dax Garvin : Texas, Travis County, Georgetown, Round Rock, Cedar Park

Senate Bill 261 as proposed is available for review and must not pass as it is written!

This bill must not pass as it takes away constitutional rights of every motorist in Texas.  It would require that blood draws SHALL be taken after an injury accident.  It reduces the amount of injury currently required from serious bodily injury to simply bodily injury.  Further, and even more egregiously cops could have blood taken if anyone other than the suspect is transported for "medical treatment" or if they have been arrested for DWI in the past.

Currently, serious bodily injury is defined as follows:

Texas Penal Code 1.07(a)(46):  "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or any protracted loss or impairment of the function of any bodily member or organ."

vs

Texas Penal Code 1.07(a)(8) which defines bodily injury "as physical pain, illness, or any impairment of physical condition."

Further, the proposed bill would allow someone arrested for a DWI or similar offense in another state to be subjected to having blood taken, regardless of what happened to that case.  So, if the case was dismissed... blood  is drawn.  If the case was reduced, blood is drawn.  And most outrageous of all, if the person was found not guilty ... blood is drawn.

If one cannot see the absurdity of this proposed law in Texas and the great number of constitutional rights that are given up, then that person must be asleep or so apathetic that they should not be allowed to participate in organized society.  Yes, I realize that is a strong statement, but this proposed law is outrageous and must not pass the Texas Legislature as written.  Even a substantially similar form of the bill would be threatening.

There are so many undefined terms in this proposed piece of legislation that it should terrify anyone reading this and every citizen of Texas, who does not want their DNA and other medical information smeared into State files should start a letter writing campaign immediately to their State Representatives urging that they Stop Senate Bill 261.

To make that easier, CLICK HERE TO FIND OUT WHO REPRESENTS YOU and urge him or her to VOTE NO on this legislation.

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The combining of DWI investigations and driving while intoxicated (DWI ) investigations is rather common, especially for smaller municipalities that lack much of the funding or training for its officers about how to handle these matters.  In fact, health care professionals are not required to test for intoxication during treatment and even if they do, they are not required to report it to law enforcement.  Usually, what happens, is if officers suspect that alcohol was involved in a collision that sent someone to the hospital, it gets noted in a report and the prosecutor's office will subpoena the record medical record. 

Emergency room physicians are not required by law to report drunk drivers, and sometimes they rely on a financial reason not to test for intoxication:  they do not want the claim for their services denied by the health insurance provider.  This is a federal law that has been around for over half-a-century. 

So, what happens when a hospital draws blood and there is an associated DWI? Well, if the State handles the matter correctly, they will probably have access to that record, which will show the measure of alcohol in the blood.  However, if the records are not properly ordered, that is one set of testing that will likely not become part of a State's file.

In a world of ever-increasing pressure for "mandatory blood draws" like the one put on by the Austin Police Department over the Halloween, 2008, weekend, it should not come as a surprise that State officials may try to get these records, which is legal.  However, it is not legal for them to circumvent the search warrant requirement of the 4th Amendment to the US Constitution and related provisions under State law to have hospitals draw the blood, as part of an active investigation, without a warrant.  To do so would be to indirectly seize that which they legally cannot to begin with.  Proving this may be rather difficult, especially if you have a health care provider that is in collusion, but for now, I'm going to hope that is uncommon at most.

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